Semon v. Ilgenfritz

• Decision Date: 08 April 1930
• Docket Number: No. 21055.,21055.
• Parties: SEMON v. ILGENFRITZ.
• Court: Missouri Court of Appeals

26 S.W.2d 836

SEMON v. ILGENFRITZ.

No. 21055.

St. Louis Court of Appeals. Missouri.

April 8, 1930.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be officially published."

Action by Dorothy Belle Semon against Mel Ilgenfritz. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Paul Barnett, of Kansas City, for appellant.

Shain & O'Bannon, of Sedalia, and J. W. Johnson, of Houston, Tex., for respondent.

SUTTON, C.

This is an action on a promissory note. The action was instituted in the circuit court of Pettis county. From a judgment in that court in favor of plaintiff, the cause was appealed to the Kansas City Court of Appeals, on which appeal the judgment was reversed and the cause remanded. The opinion of the Kansas City Court of Appeals, reversing and remanding the cause, is reported in 15 S.W. (2d) at page 912. After the mandate went down from that court, a change of venue was granted from the circuit court of Pettis county to the circuit court of Franklin county, where, upon a trial before the court, without a jury, judgment was given for defendant. From this judgment plaintiff has appealed to this court.

After the cause was transferred, on change of venue, to the Franklin county circuit court, and before the trial in that court, plaintiff filed an amended petition, wherein she alleged that on May 26, 1911, defendant signed his promissory note, of that date, whereby, on demand, he promised to pay to the order of plaintiff $7,500, that thereafter, on or about September, 1912, defendant completely executed said note, for value received, and completely delivered the same, and that no part of said note has been paid.

Plaintiff is the daughter of defendant and his wife, Dorothy W. Ilgenfritz. At the time the note sued on was executed, plaintiff was a small child. She had arrived at her majority shortly before the institution of this suit.

Plaintiff introduced in evidence the note sued on, which, omitting the date and signature, is as follows: "On demand after date I promise to pay to the order of Dorothy Belle Ilgenfritz at the Third National Bank of Sedalia, Mo. Seven thousand five hundred dollars, for value received, negotiable and payable without defalcation or discount, with interest from no interest."

Plaintiff's mother testified that she lived with defendant as his wife for approximately eight years; that on May 26, 1911, she was living with him in Sedalia, Mo.; that the body of the note sued on was in her handwriting; that her husband, the defendant, wrote in the words, "no interest," at the time the note was signed; that prior to the signing of the note the domestic relations between her and defendant had not been pleasant; that there was trouble between them; that there were many separations and reconciliations; that the execution of the note was the outcome of months and years of disagreements and trouble; that the time came that she was going to leave; that she knew she could not live with defendant any longer; that the note was made for the daughter, simply as the outcome of years of trouble and unhappiness; that she was a graduate of a normal school, and felt perfectly capable of supporting herself, and was willing to do so, but that she felt that her daughter, who was then only 6 years old, was entitled to something for her support; that she knew defendant's father had an estate valued at $150,000, and knew that defendant's part of the estate would be one-third, and took the note because she thought it was due to his daughter whenever she could collect it; that, in consideration of the execution of the note, she relieved the defendant from legal responsibility for the support of herself and the daughter; that at the time of the signing of the note there was no actual separation; that defendant talked her right back into staying with him, but that she was allowed to keep the note; that she gave him another trial, but finally left him a year and several months later, in September; that she talked to an attorney, who prepared a petition for divorce and alimony, which was filed in the Pettis county circuit court; that she then went to California, taking her daughter with her; that defendant followed her to California; that, after he came out there, they had an understanding that defendant was to come back to Missouri, and she would give him one year to see what he could and would make of himself in that year; that she promised to come back to him under the condition that he behaved himself and lived as he should, but that she knew from his previous conduct that he...